By Moncrief                                      S.B. No. 414

      75R3842 DLF-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to certain advance directives for medical treatment.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4                        ARTICLE 1. ADVANCE DIRECTIVES

 1-5           SECTION 1.01.  Subtitle H, Title 2, Health and Safety Code,

 1-6     is amended by adding a chapter heading for Chapter 166 to read as

 1-7     follows:

 1-8                      CHAPTER 166.  ADVANCE DIRECTIVES

 1-9           SECTION 1.02.  Subtitle H, Title 2, Health and Safety Code,

1-10     is amended by adding Subchapter A, Chapter 166, to read as follows:

1-11                      SUBCHAPTER A.  GENERAL PROVISIONS

1-12           Sec. 166.001.  SHORT TITLE.   This chapter may be cited as

1-13     the Advance Directives Act.

1-14           Sec. 166.002.  DEFINITIONS.   In this chapter:

1-15                 (1)  "Advance directive" means:

1-16                       (A)  a directive, as that term is defined by

1-17     Section 166.031; or

1-18                       (B)  an out-of-hospital DNR order, as that term

1-19     is defined by Section 166.081.

1-20                 (2)  "Attending physician" means a physician selected

1-21     by or assigned to a patient who has primary responsibility for a

1-22     patient's treatment and care.

1-23                 (3)  "Competent" means possessing the ability, based on

1-24     reasonable medical judgment, to understand and appreciate the

 2-1     nature and consequences of a treatment decision, including the

 2-2     significant benefits and harms of and reasonable alternatives to a

 2-3     proposed treatment decision.

 2-4                 (4)  "Declarant" means a person who has executed or

 2-5     issued a directive under this chapter.

 2-6                 (5)  "Durable power of attorney for health care" means

 2-7     a durable power of attorney for health care executed or issued

 2-8     under Subchapter D.

 2-9                 (6)  "Incompetent" means lacking the ability, based on

2-10     reasonable medical judgment, to understand and appreciate the

2-11     nature and consequences of a treatment decision, including the

2-12     significant benefits and harms of and reasonable alternatives to a

2-13     proposed treatment decision.

2-14                 (7)  "Life-sustaining procedure" has the meaning

2-15     assigned by Section 166.031 or 166.081, as appropriate.

2-16                 (8)  "Physician" means:

2-17                       (A)  a physician licensed by the Texas State

2-18     Board of Medical Examiners; or

2-19                       (B)  a properly credentialed physician who holds

2-20     a commission in the uniformed services of the United States and who

2-21     is serving on active duty in this state.

2-22                 (9)  "Terminal condition" means an incurable or

2-23     irreversible condition caused by injury, disease, or illness that

2-24     would produce death without the application of life-sustaining

2-25     procedures, according to reasonable medical judgment, and in which

2-26     the application of life-sustaining procedures serves only to

2-27     postpone the moment of the patient's death. A patient who has been

 3-1     admitted to a program under which the person receives hospice

 3-2     services provided by a home and community support services agency

 3-3     licensed under Chapter 142 is presumed to have a terminal condition

 3-4     for purposes of this chapter.

 3-5                 (10)  "Witness" means a person who may serve as a

 3-6     witness under Section 166.003.

 3-7           Sec. 166.003.  WITNESSES.  (a) In any circumstance in which

 3-8     this chapter requires the execution of an advance directive or the

 3-9     issuance of a nonwritten advance directive to be witnessed, a

3-10     witness may not be:

3-11                 (1)  related to the declarant by blood or marriage;

3-12                 (2)  entitled to any part of the declarant's estate

3-13     after the declarant's death under a will or codicil executed by the

3-14     declarant or by operation of law;

3-15                 (3)  the attending physician;

3-16                 (4)  an employee of the attending physician;

3-17                 (5)  a patient in a health care facility in which the

3-18     declarant is a patient;

3-19                 (6)  a person who, at the time the directive is

3-20     executed or the nonwritten directive is issued, has a claim against

3-21     any part of the declarant's estate after the declarant's death; or

3-22                 (7)  an employee of a health care facility in which the

3-23     declarant is a patient if the employee is providing direct patient

3-24     care or is directly involved in the financial affairs of the

3-25     facility.

3-26           (b)  For purposes of Subsection (a)(7), a person is directly

3-27     involved in the financial affairs of a health care facility if the

 4-1     person serves as an officer, director, partner, or business office

 4-2     employee of the health care facility or of any parent organization

 4-3     of the health care facility.

 4-4           SECTION 1.03.  Chapter 672, Health and Safety Code, is

 4-5     transferred to Subtitle H, Title 2, Health and Safety Code, is

 4-6     redesignated as Subchapter B, Chapter 166, Health and Safety Code,

 4-7     and is amended to read as follows:

 4-8               SUBCHAPTER B [CHAPTER 672]. NATURAL DEATH [ACT]

 4-9           [Sec. 672.001.  SHORT TITLE.  This chapter may be cited as

4-10     the Natural Death Act.]

4-11           Sec. 166.031 [672.002].  DEFINITIONS.  In this subchapter

4-12     [chapter]:

4-13                 (1)  ["Attending physician" means the physician who has

4-14     primary responsibility for a patient's treatment and care.]

4-15                 [(2)  "Competent" means possessing the ability, based

4-16     on reasonable medical judgment, to understand and appreciate the

4-17     nature and consequences of a treatment decision, including the

4-18     significant benefits and harms of and reasonable alternatives to a

4-19     proposed treatment decision.]

4-20                 [(3)  "Declarant" means a person who has executed or

4-21     issued a directive under this chapter.]

4-22                 [(4)]  "Directive" means an instruction made under

4-23     Section 166.032, 166.034, or 166.035 [672.003, 672.005, or 672.006]

4-24     to  withhold or withdraw life-sustaining procedures in the event of

4-25     a terminal condition.

4-26                 (2) [(5)  "Incompetent" means lacking the ability,

4-27     based on reasonable medical judgment, to understand and appreciate

 5-1     the nature and consequences of a treatment decision, including the

 5-2     significant benefits and harms of and reasonable alternatives to a

 5-3     proposed treatment decision.]

 5-4                 [(6)]  "Life-sustaining procedure" means a medical

 5-5     procedure or intervention that uses mechanical or other artificial

 5-6     means to sustain, restore, or supplant a vital function, and only

 5-7     artificially postpones the moment of death of a patient in a

 5-8     terminal condition whose death is imminent or will result within a

 5-9     relatively short time without the application of the procedure.

5-10     The term does not include the administration of medication or the

5-11     performance of a medical procedure considered to be necessary to

5-12     provide comfort or care or to alleviate pain.

5-13                 (3) [(7)  "Physician" means a physician licensed by the

5-14     Texas State Board of Medical Examiners or  a properly credentialed

5-15     physician who holds a commission in the uniformed services of the

5-16     United States and who is serving on active duty in this state.]

5-17                 [(8)]  "Qualified patient" means a patient with a

5-18     terminal condition that has been diagnosed and certified in writing

5-19     by the attending physician [and one other physician] who has [have]

5-20     personally examined the patient.

5-21                 [(9)  "Terminal condition" means an incurable or

5-22     irreversible condition caused by injury, disease, or illness that

5-23     would produce death without the application of life-sustaining

5-24     procedures, according to reasonable medical judgment, and in which

5-25     the application of life-sustaining procedures serves only to

5-26     postpone the moment of the patient's death.]

5-27           Sec. 166.032 [672.003].  WRITTEN DIRECTIVE BY COMPETENT

 6-1     ADULT; NOTICE TO PHYSICIAN.  (a)  A competent adult may at  any

 6-2     time execute a written directive.

 6-3           (b)  The declarant must sign the directive in the presence of

 6-4     two witnesses, and those witnesses must sign the directive.

 6-5           (c)  [A witness may not be:]

 6-6                 [(1)  related to the declarant by blood or marriage;]

 6-7                 [(2)  entitled to any part of the declarant's estate

 6-8     after the declarant's death under a will or codicil executed by the

 6-9     declarant or by operation of law;]

6-10                 [(3)  the attending physician;]

6-11                 [(4)  an employee of the attending physician;]

6-12                 [(5)  an employee of a health care facility in which

6-13     the declarant is a patient if the employee is providing direct

6-14     patient care to the declarant or is directly involved in the

6-15     financial affairs of the facility;]

6-16                 [(6)  a patient in a health care facility in which the

6-17     declarant is a patient; or]

6-18                 [(7)  a person who, at the time the directive is

6-19     executed, has a claim against any part of the declarant's estate

6-20     after the declarant's death.]

6-21           [(d)]  A declarant may include in a directive directions

6-22     other than those provided by Section 166.033 [672.004] and may

6-23     designate in a directive a person to make a treatment decision for

6-24     the declarant in  the event the declarant becomes comatose,

6-25     incompetent, or otherwise mentally or physically incapable of

6-26     communication.

6-27           (d) [(e)]  A declarant shall notify the attending physician

 7-1     of the existence of a written directive.  If the declarant is

 7-2     comatose, incompetent, or otherwise mentally or physically

 7-3     incapable of communication, another person may notify the attending

 7-4     physician of the existence of the written directive.  The attending

 7-5     physician shall make the directive a part of the declarant's

 7-6     medical record.

 7-7           Sec. 166.033 [672.004].  FORM OF WRITTEN DIRECTIVE.  A

 7-8     written directive may be in the following form:

 7-9                          "DIRECTIVE TO PHYSICIANS

7-10           "Directive made this __________ day of __________ (month,

7-11     year).

7-12           "I __________, being of sound mind, wilfully and voluntarily

7-13     make known my desire that my life shall not be artificially

7-14     prolonged under the circumstances set forth in this directive.

7-15           "1.  If at any time I should have an incurable or

7-16     irreversible condition caused by injury, disease, or illness

7-17     certified to be a terminal condition by my attending physician [two

7-18     physicians], and if the application of life-sustaining procedures

7-19     would serve only to artificially postpone the moment of my death,

7-20     and if my attending physician determines that my death is imminent

7-21     or will result within a relatively short time without the

7-22     application of life-sustaining procedures, I direct that those

7-23     procedures be withheld or withdrawn, and that I be permitted to die

7-24     naturally.

7-25           "2.  In the absence of my ability to give directions

7-26     regarding the use of those life-sustaining procedures, it is my

7-27     intention that this directive be honored by my family and

 8-1     physicians as the final expression of my legal right to refuse

 8-2     medical or surgical treatment and accept the consequences from that

 8-3     refusal.

 8-4           "3.  If I have been diagnosed as pregnant and that diagnosis

 8-5     is known to my physician, this directive has no effect during my

 8-6     pregnancy.

 8-7           "4.  This directive is in effect until it is revoked.

 8-8           "5.  I understand the full import of this directive and I am

 8-9     emotionally and mentally competent to make this directive.

8-10           "6.  I understand that I may revoke this directive at any

8-11     time.

8-12                                            "Signed ______________

8-13                                            (City, County, and State of

8-14     Residence)

8-15           I am not related to the declarant by blood or marriage.  I

8-16     would not be entitled to any portion of the declarant's estate on

8-17     the declarant's death.  I am not the attending physician of the

8-18     declarant or an employee of the attending physician. I am not a

8-19     patient in the health care facility in which the declarant is a

8-20     patient.  I have no claim against any portion of the declarant's

8-21     estate on the declarant's death. Furthermore, if I am an employee

8-22     of a health care facility in which the declarant is a patient, I am

8-23     not involved in providing direct patient care to the declarant and

8-24     am not an officer, director, partner, or  business office employee

8-25     of the health care facility or  of  any  parent  organization of

8-26     the health care facility [directly involved in the financial

8-27     affairs of the health facility].

 9-1                                            "Witness_________

 9-2                                            "Witness_________"

 9-3           Sec. 166.034 [672.005].  ISSUANCE OF NONWRITTEN DIRECTIVE BY

 9-4     COMPETENT ADULT QUALIFIED PATIENT.  (a)  A competent  qualified

 9-5     patient who is an adult may issue a directive by a nonwritten means

 9-6     of communication.

 9-7           (b)  A declarant must issue the nonwritten directive in the

 9-8     presence of the attending physician and two witnesses.  [The

 9-9     witnesses must possess the same qualifications as are required by

9-10     Section 672.003(c).]

9-11           (c)  The physician shall make the fact of the existence of

9-12     the directive a part of the declarant's medical record and the

9-13     witnesses shall sign the entry in the medical record.

9-14           Sec. 166.035 [672.006].  EXECUTION OF DIRECTIVE ON BEHALF OF

9-15     PATIENT YOUNGER THAN 18 YEARS OF AGE.  The following persons may

9-16     execute a directive on behalf of a qualified patient who is younger

9-17     than 18 years of age:

9-18                 (1)  the patient's spouse, if the spouse is an adult;

9-19                 (2)  the patient's parents; or

9-20                 (3)  the patient's legal guardian.

9-21           Sec. 166.036.  NOTARIZED DOCUMENT NOT REQUIRED; REQUIREMENT

9-22     OF SPECIFIC FORM PROHIBITED.  (a)  A written directive executed

9-23     under Section 166.033 or 166.035 is effective without regard to

9-24     whether the document has been notarized.

9-25           (b)  A physician, health care facility, or health care

9-26     professional may not require that:

9-27                 (1)  a directive be notarized; or

 10-1                (2)  a person use a form provided by the physician,

 10-2    health care facility, or health care professional.

 10-3          Sec. 166.037 [672.007].  PATIENT DESIRE SUPERSEDES DIRECTIVE.

 10-4    The desire of a competent qualified patient, including a competent

 10-5    qualified patient younger than 18 years of age, supersedes the

 10-6    effect of a directive.

 10-7          Sec. 166.038 [672.008].  PROCEDURE WHEN DECLARANT IS

 10-8    INCOMPETENT OR INCAPABLE OF COMMUNICATION.  (a)  This section

 10-9    applies when an adult qualified patient has executed or issued a

10-10    directive and is comatose, incompetent, or otherwise mentally or

10-11    physically incapable of communication.

10-12          (b)  If the adult qualified patient has designated a person

10-13    to make a treatment decision as authorized by Section 166.032(c)

10-14    [672.003(d)], the attending physician and the designated person may

10-15    make a treatment decision to withhold or withdraw life-sustaining

10-16    procedures from the patient.

10-17          (c)  If the adult qualified patient has not designated a

10-18    person to make a treatment decision, the attending physician shall

10-19    comply with the directive unless the physician believes that the

10-20    directive does not reflect the patient's present desire.

10-21          Sec. 166.039 [672.009].  PROCEDURE WHEN PERSON HAS NOT

10-22    EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF

10-23    COMMUNICATION.  (a)  If an adult qualified patient has not executed

10-24    or issued a directive and is comatose, incompetent, or otherwise

10-25    mentally or physically incapable of communication, the attending

10-26    physician and the patient's legal guardian or an agent under a

10-27    durable power of attorney for health care may make a treatment

 11-1    decision that may include a decision to withhold or withdraw

 11-2    life-sustaining procedures from the patient.

 11-3          (b)  If the patient does not have a legal guardian, the

 11-4    attending physician and one person from one [at least two persons,

 11-5    if available,] of the following categories, in the following

 11-6    priority, may make a treatment decision that may include a decision

 11-7    to withhold or withdraw life-sustaining procedures:

 11-8                (1)  the patient's spouse;

 11-9                (2)  [a majority of] the patient's reasonably available

11-10    adult children;

11-11                (3)  the patient's parents; or

11-12                (4)  the patient's nearest living relative.

11-13          (c)  A treatment decision made under Subsection (a) or (b)

11-14    must be based on knowledge of what the patient would desire, if

11-15    known.

11-16          (d)  A treatment decision made under Subsection (b) must be

11-17    made in the presence of at least two witnesses who possess the same

11-18    qualifications and are subject to the same restrictions as provided

11-19    [as are required] by Section 166.003 [672.003(c)].

11-20          (e)  The fact that an adult qualified patient has not

11-21    executed or issued a directive does not create a presumption that

11-22    the patient does not want a treatment decision to be made to

11-23    withhold or withdraw life-sustaining procedures.

11-24          Sec. 166.040 [672.010].  PATIENT CERTIFICATION AND

11-25    PREREQUISITES FOR COMPLYING WITH DIRECTIVE.  (a)  An attending

11-26    physician who has been notified of the existence of a directive

11-27    shall provide for the declarant's certification as a qualified

 12-1    patient on diagnosis of a terminal condition.

 12-2          (b)  Before withholding or withdrawing life-sustaining

 12-3    procedures from a qualified patient under this subchapter

 12-4    [chapter], the attending physician must:

 12-5                (1)  determine that the patient's death is imminent or

 12-6    will result within a relatively short time without application of

 12-7    those procedures;

 12-8                (2)  note that determination in the patient's medical

 12-9    record; and

12-10                (3)  determine that the steps proposed to be taken are

12-11    in accord with this subchapter [chapter] and the patient's existing

12-12    desires.

12-13          Sec. 166.041 [672.011].  DURATION OF DIRECTIVE.  A directive

12-14    is effective until it is revoked as prescribed by Section 166.042

12-15    [672.012].

12-16          Sec. 166.042 [672.012].  REVOCATION OF DIRECTIVE.  (a)  A

12-17    declarant may revoke a directive at any time without  regard to the

12-18    declarant's mental state or competency.  A directive may be revoked

12-19    by:

12-20                (1)  the declarant or someone in the declarant's

12-21    presence and at the declarant's direction canceling, defacing,

12-22    obliterating, burning, tearing, or otherwise destroying the

12-23    directive;

12-24                (2)  the declarant signing and dating a written

12-25    revocation that expresses the declarant's intent to revoke the

12-26    directive; or

12-27                (3)  the declarant orally stating the declarant's

 13-1    intent to revoke the directive.

 13-2          (b)  A written revocation executed as prescribed by

 13-3    Subsection (a)(2) takes effect only when the declarant or a person

 13-4    acting on behalf of the declarant notifies the attending physician

 13-5    of its existence or mails the revocation to the attending

 13-6    physician.  The attending physician or the physician's designee

 13-7    shall record in the patient's medical record the time and date when

 13-8    the physician received notice of the written revocation and shall

 13-9    enter the word "VOID" on each page of the copy of the directive in

13-10    the patient's medical record.

13-11          (c)  An oral revocation issued as prescribed by Subsection

13-12    (a)(3) takes effect only when the declarant or a person acting on

13-13    behalf of the declarant notifies the attending physician of the

13-14    revocation.  The attending physician or the physician's designee

13-15    shall record in the patient's medical record the time, date, and

13-16    place of the revocation, and, if different, the time, date, and

13-17    place that the physician received notice of the revocation.  The

13-18    attending physician or the physician's designees shall also enter

13-19    the word "VOID" on each page of the copy of the directive in the

13-20    patient's medical record.

13-21          (d)  Except as otherwise provided by this subchapter

13-22    [chapter], a person is not civilly or criminally liable for failure

13-23    to act on a revocation made under this section unless the person

13-24    has actual knowledge of the revocation.

13-25          Sec. 166.043 [672.013].  REEXECUTION OF DIRECTIVE. A

13-26    declarant may at any time reexecute a directive in accordance with

13-27    the procedures prescribed by Section 166.032 [672.003], including

 14-1    reexecution after the declarant is diagnosed as having a terminal

 14-2    condition.

 14-3          Sec. 166.044 [672.014].  EFFECT OF DIRECTIVE ON INSURANCE

 14-4    POLICY AND PREMIUMS.  (a)  The fact that a person has  executed or

 14-5    issued a directive under this subchapter [chapter] does not:

 14-6                (1)  restrict, inhibit, or impair in any manner the

 14-7    sale, procurement, or issuance of a life insurance policy to that

 14-8    person; or

 14-9                (2)  modify the terms of an existing life insurance

14-10    policy.

14-11          (b)  Notwithstanding the terms of any life insurance policy,

14-12    the fact that life-sustaining procedures are withheld or withdrawn

14-13    from an insured qualified patient under this subchapter [chapter]

14-14    does not legally impair or invalidate that person's life insurance

14-15    policy.

14-16          (c)  A physician, health facility, health provider, insurer,

14-17    or health care service plan may not require a person to execute or

14-18    issue a directive as a condition for obtaining insurance for health

14-19    care services or receiving health care services.

14-20          (d)  The fact that a person has executed or issued or failed

14-21    to execute or issue a directive under this subchapter [chapter] may

14-22    not be considered in any way in establishing insurance premiums.

14-23          Sec. 166.045 [672.015].  LIMITATION OF LIABILITY FOR

14-24    WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING PROCEDURES.  (a)  A

14-25    physician or health facility that, in good faith, causes

14-26    life-sustaining procedures to be withheld or withdrawn from a

14-27    qualified patient in accordance with this subchapter [chapter] is

 15-1    not civilly liable for that action [unless negligent].

 15-2          (b)  A health professional, acting under the direction of a

 15-3    physician, who participates, in good faith, in withholding or

 15-4    withdrawing life-sustaining procedures from a qualified patient in

 15-5    accordance with this subchapter [chapter] is not civilly liable for

 15-6    that action [unless negligent].

 15-7          (c)  A physician, or a health professional acting under the

 15-8    direction of a physician, who participates, in good faith, in

 15-9    withholding or withdrawing life-sustaining procedures from a

15-10    qualified patient in accordance with this subchapter [chapter] is

15-11    not criminally liable or guilty of unprofessional conduct as a

15-12    result of that action [unless negligent].

15-13          Sec. 166.046 [672.016].  LIMITATION OF LIABILITY FOR FAILURE

15-14    TO EFFECTUATE DIRECTIVE.  (a)  A physician, health care  facility,

15-15    or health care professional who has no knowledge of a directive is

15-16    not civilly or criminally liable for failing to act in accordance

15-17    with the directive.

15-18          (b)  A physician, or a health professional acting under the

15-19    direction of a physician, is not civilly or criminally liable for

15-20    failing to effectuate a qualified patient's directive.

15-21          (c)  If an attending physician refuses to comply with a

15-22    directive or treatment decision, the physician shall make a

15-23    reasonable effort to transfer the patient to another physician.

15-24          Sec. 166.047 [672.017].  HONORING DIRECTIVE DOES NOT

15-25    CONSTITUTE OFFENSE OF AIDING SUICIDE. A person does not commit an

15-26    offense under Section 22.08, Penal Code, by withholding or

15-27    withdrawing life-sustaining procedures from a qualified patient in

 16-1    accordance with this subchapter [chapter].

 16-2          Sec. 166.048 [672.018].  CRIMINAL PENALTY; PROSECUTION.

 16-3    (a)  A person commits an offense if the person intentionally

 16-4    conceals, cancels, defaces, obliterates, or damages another

 16-5    person's directive without that person's consent.  An offense under

 16-6    this subsection is a Class A misdemeanor.

 16-7          (b)  A person is subject to prosecution for criminal homicide

 16-8    under Chapter 19, Penal Code, if the person, with the intent to

 16-9    cause life-sustaining procedures to be withheld or withdrawn from

16-10    another person contrary to the other person's desires, falsifies or

16-11    forges a directive or intentionally conceals or withholds personal

16-12    knowledge of a revocation and thereby directly causes

16-13    life-sustaining procedures to be withheld or withdrawn from the

16-14    other person with the result that the other person's death is

16-15    hastened.

16-16          Sec. 166.049 [672.019].  PREGNANT PATIENTS.  A person may not

16-17    withdraw or withhold life-sustaining procedures under this

16-18    subchapter [chapter] from a pregnant patient.

16-19          Sec. 166.050 [672.020].  MERCY KILLING NOT CONDONED. This

16-20    subchapter [chapter] does not condone, authorize, or approve  mercy

16-21    killing or permit an affirmative or deliberate act or omission to

16-22    end life except to permit the natural process of dying as provided

16-23    by this subchapter [chapter].

16-24          Sec. 166.051 [672.021].  LEGAL RIGHT OR RESPONSIBILITY NOT

16-25    AFFECTED. This subchapter [chapter] does not impair or supersede

16-26    any legal right or responsibility a person may have to effect the

16-27    withholding or withdrawal of life-sustaining procedures in a lawful

 17-1    manner.

 17-2          SECTION 1.04.  Chapter 674, Health and Safety Code, is

 17-3    transferred to Subtitle H, Title 2, Health and Safety Code, is

 17-4    redesignated as Subchapter C, Chapter 166, Health and Safety Code,

 17-5    and is amended to read as follows:

 17-6                SUBCHAPTER C [CHAPTER 674]. OUT-OF-HOSPITAL

 17-7                         DO-NOT-RESUSCITATE ORDERS

 17-8          Sec. 166.081 [674.001].  DEFINITIONS. In this subchapter

 17-9    [chapter]:

17-10                (1)  ["Attending physician" means the physician who has

17-11    primary responsibility for a person's treatment and care.]

17-12                [(2)  "Board" means the Texas Board of Health.]

17-13                [(3)]  "Cardiopulmonary resuscitation" includes a

17-14    component of cardiopulmonary resuscitation.

17-15                (2) [(4)  "Competent" means possessing the ability,

17-16    based on reasonable medical judgment, to understand and appreciate

17-17    the nature and consequences of a treatment decision, including the

17-18    significant benefits and harms of, and reasonable alternatives to,

17-19    a proposed treatment decision.]

17-20                [(5)  "Declarant" means a person who has executed or

17-21    issued an out-of-hospital do-not-resuscitate order under this

17-22    chapter.]

17-23                [(6)  "Department" means the Texas Department of

17-24    Health.]

17-25                [(7)]  "DNR identification device" means an

17-26    identification device specified by the board under Section 166.103

17-27    [674.023] that is worn for the purpose of identifying a person who

 18-1    has executed or issued an out-of-hospital DNR order or on whose

 18-2    behalf an out-of-hospital DNR order has been executed or issued

 18-3    under this subchapter [chapter].

 18-4                (3) [(8)  "Durable power of attorney for health care"

 18-5    means a document delegating to an agent the authority to make

 18-6    health care decisions for a person in accordance with  Chapter 135,

 18-7    Civil Practice and Remedies Code.]

 18-8                [(9)]  "Emergency medical services" has the meaning

 18-9    assigned by Section 773.003.

18-10                (4) [(10)]  "Emergency medical services personnel" has

18-11    the meaning assigned by Section 773.003.

18-12                (5) [(11)]  "Health care professionals" means

18-13    physicians, nurses, and emergency medical services personnel and,

18-14    unless the context requires otherwise, includes hospital emergency

18-15    personnel.

18-16                (6) [(12)  "Incompetent" means lacking the ability,

18-17    based on reasonable medical judgment, to understand and appreciate

18-18    the nature and consequences of a treatment decision, including the

18-19    significant benefits and harms of, and reasonable alternatives to,

18-20    a proposed treatment decision.]

18-21                [(13)]  "Life-sustaining procedure" means a medical

18-22    procedure, treatment, or intervention that uses mechanical or other

18-23    artificial means to sustain, restore, or supplant a [spontaneous]

18-24    vital function and, when applied to a person in a terminal

18-25    condition, serves only to prolong the process of dying.  The term

18-26    does not include the administration of medication or the

18-27    performance of a medical procedure considered to be necessary to

 19-1    provide comfort or care or to alleviate pain [or the provision of

 19-2    water or nutrition].

 19-3                (7) [(14)]  "Out-of-hospital DNR order":

 19-4                      (A)  means a legally binding out-of-hospital

 19-5    do-not-resuscitate order, in the form specified by the board under

 19-6    Section 166.083 [674.003], prepared and signed by the attending

 19-7    physician of a person who has been diagnosed as having a terminal

 19-8    condition, that documents the instructions of a person or the

 19-9    person's legally authorized representative and directs health care

19-10    professionals acting in an out-of-hospital setting not to initiate

19-11    or continue the following life-sustaining procedures:

19-12                            (i)  cardiopulmonary resuscitation;

19-13                            (ii)  endotracheal intubation or other

19-14    means of advanced airway management;

19-15                            (iii)  artificial ventilation;

19-16                            (iv)  defibrillation;

19-17                            (v)  transcutaneous cardiac pacing;

19-18                            (vi)  the administration of cardiac

19-19    resuscitation medications; and

19-20                            (vii)  other life-sustaining procedures

19-21    specified by the board under Section 166.103(a) [674.023(a)]; and

19-22                      (B)  does not include authorization to withhold

19-23    medical interventions or therapies considered necessary to provide

19-24    comfort or care or to alleviate pain [or to provide water or

19-25    nutrition].

19-26                (8) [(15)]  "Out-of-hospital setting" means any setting

19-27    outside of a licensed acute care hospital in which health care

 20-1    professionals are called for assistance, including long-term care

 20-2    facilities, in-patient hospice facilities, private homes, and

 20-3    vehicles during transport.

 20-4                (9) [(16)  "Physician" means a physician licensed by

 20-5    the Texas State Board of Medical Examiners or a properly

 20-6    credentialed physician who holds a commission in the uniformed

 20-7    services of the United States and who is serving on active duty in

 20-8    this state.]

 20-9                [(17)]  "Proxy" means a person designated and

20-10    authorized by a directive executed or issued in accordance with

20-11    Subchapter B [Chapter 672] to make a treatment decision for another

20-12    person in the event the other person becomes comatose, incompetent,

20-13    or otherwise mentally or physically incapable of communication.

20-14                (10) [(18)]  "Qualified relatives" means those persons

20-15    authorized to execute or issue an out-of-hospital DNR order on

20-16    behalf of a person who is comatose, incompetent, or otherwise

20-17    mentally or physically incapable of communication under Section

20-18    166.088 [674.008].

20-19                (11) [(19)]  "Statewide out-of-hospital DNR protocol"

20-20    means a set of statewide standardized procedures adopted by the

20-21    board under Section 166.103 [674.023] for withholding

20-22    cardiopulmonary resuscitation and certain other life-sustaining

20-23    procedures by health care professionals acting in out-of-hospital

20-24    settings.

20-25                [(20)  "Terminal condition" means an incurable or

20-26    irreversible condition caused by injury, disease, or illness that

20-27    would produce death without the application of life-sustaining

 21-1    procedures, according to reasonable medical judgment, and in which

 21-2    the application of life-sustaining procedures serves only to

 21-3    postpone the moment of the person's death.]

 21-4          Sec. 166.082 [674.002].  OUT-OF-HOSPITAL DNR ORDER; DIRECTIVE

 21-5    TO PHYSICIANS.  (a)  A competent person who has been diagnosed by a

 21-6    physician as having a terminal condition may at any time execute a

 21-7    written out-of-hospital DNR order directing health care

 21-8    professionals acting in an out-of-hospital setting to withhold

 21-9    cardiopulmonary resuscitation and certain other life-sustaining

21-10    procedures designated by the board.

21-11          (b)  The declarant must sign the out-of-hospital DNR order in

21-12    the presence of two witnesses, and those witnesses must sign the

21-13    order.  The attending physician of the declarant must sign the

21-14    order and shall make the fact of the existence of the order and the

21-15    reasons for execution of the order a part of the declarant's

21-16    medical record.

21-17          (c)  [A witness must have the same qualifications as those

21-18    provided by Section 672.003(c).]

21-19          [(d)]  If the person is incompetent but previously executed

21-20    or issued a directive to physicians in accordance with Subchapter B

21-21    [Chapter 672], the physician may rely on the directive as the

21-22    person's instructions to issue an out-of-hospital DNR order and

21-23    shall place a copy of the directive in the person's medical record.

21-24    The physician shall sign the order in lieu of the person signing

21-25    under Subsection (b).

21-26          (d) [(e)]  If the person is incompetent but previously

21-27    executed or issued a directive to physicians in accordance with

 22-1    Subchapter B  [Chapter 672] designating a proxy, the proxy may make

 22-2    any decisions required of the designating person as to an

 22-3    out-of-hospital DNR order and shall sign the order in lieu of the

 22-4    person signing under Subsection (b).

 22-5          (e) [(f)]  If the person is now incompetent but previously

 22-6    executed or issued a durable power of attorney for health care [in

 22-7    accordance with Chapter 135, Civil Practice and Remedies Code],

 22-8    designating an agent, the agent may make any decisions required of

 22-9    the designating person as to an out-of-hospital DNR order and shall

22-10    sign the order in lieu of the person signing under Subsection (b).

22-11          (f) [(g)]  The board, on the recommendation of the

22-12    department, shall by rule adopt procedures for the disposition and

22-13    maintenance of records of an original out-of-hospital DNR order and

22-14    any copies of the order.

22-15          (g) [(h)]  An out-of-hospital DNR order is effective on its

22-16    execution.

22-17          Sec. 166.083 [674.003].  FORM OF OUT-OF-HOSPITAL DNR ORDER.

22-18    (a)  A written out-of-hospital DNR order shall be in  the standard

22-19    form specified by board rule as recommended by the department.

22-20          (b)  The standard form of an out-of-hospital DNR order

22-21    specified by the board must, at a minimum, contain the following:

22-22                (1)  a distinctive single-page format that readily

22-23    identifies the document as an out-of-hospital DNR order;

22-24                (2)  a title that readily identifies the document as an

22-25    out-of-hospital DNR order;

22-26                (3)  the printed or typed name of the person;

22-27                (4)  a statement that the physician signing the

 23-1    document is the attending physician of the person, that the

 23-2    physician has diagnosed the person as having a terminal condition,

 23-3    and that the physician is directing health care professionals

 23-4    acting in out-of-hospital settings not to initiate or continue

 23-5    certain life-sustaining procedures on behalf of the person, and a

 23-6    listing of those procedures not to be initiated or continued;

 23-7                (5)  a statement that the person understands that the

 23-8    person may revoke the out-of-hospital DNR order at any time by

 23-9    destroying the order and removing the DNR identification device, if

23-10    any, or by communicating to health care professionals at the scene

23-11    the person's desire to revoke the out-of-hospital DNR order;

23-12                (6)  places for the printed names and signatures of the

23-13    witnesses and attending physician of the person and the medical

23-14    license number of the attending physician;

23-15                (7)  a separate section for execution of the document

23-16    by the legal guardian of the person, the person's proxy, an agent

23-17    of the person having a durable power of attorney for health care,

23-18    or the attending physician attesting to the issuance of an

23-19    out-of-hospital DNR order by nonwritten means of communication or

23-20    acting in accordance with a previously executed or previously

23-21    issued directive to physicians under Section 166.082(c)

23-22    [674.002(d)] that includes the following:

23-23                      (A)  a statement that the legal guardian, the

23-24    proxy, the agent, the person by nonwritten means of communication,

23-25    or the physician directs that the listed life-sustaining procedures

23-26    should not be initiated or continued in behalf of the person; and

23-27                      (B)  places for the printed names and signatures

 24-1    of the witnesses and, as applicable, the legal guardian, proxy,

 24-2    agent, or physician;

 24-3                (8)  a separate section for execution of the document

 24-4    by at least two qualified relatives of the person when the person

 24-5    does not have a legal guardian, proxy, or agent having a durable

 24-6    power of attorney for health care and is comatose, incompetent, or

 24-7    otherwise mentally or physically incapable of communication,

 24-8    including:

 24-9                      (A)  a statement that the relatives of the person

24-10    are qualified to make a treatment decision to withhold

24-11    cardiopulmonary resuscitation and certain other designated

24-12    life-sustaining procedures under Section 166.088 [674.008] and,

24-13    based on the known desires of the person or a determination of the

24-14    best interest of the person, direct that the listed life-sustaining

24-15    procedures should not be initiated or continued in behalf of the

24-16    person; and

24-17                      (B)  places for the printed names and signatures

24-18    of the witnesses and qualified relatives of the person;

24-19                (9)  a place for entry of the date of execution of the

24-20    document;

24-21                (10)  a statement that the document is in effect on the

24-22    date of its execution and remains in effect until the death of the

24-23    person or until the document is revoked;

24-24                (11)  a statement that the document must accompany the

24-25    person during transport;

24-26                (12)  a statement regarding the proper disposition of

24-27    the document or copies of the document, as the board determines

 25-1    appropriate; and

 25-2                (13)  a statement at the bottom of the document, with

 25-3    places for the signature of each person executing the document,

 25-4    that the document has been properly completed.

 25-5          (c)  The board may, by rule and as recommended by the

 25-6    department, modify the standard form of the out-of-hospital DNR

 25-7    order described by Subsection (b) in order to accomplish the

 25-8    purposes of this subchapter [chapter].

 25-9          Sec. 166.084 [674.004].  ISSUANCE OF OUT-OF-HOSPITAL DNR

25-10    ORDER BY NONWRITTEN COMMUNICATION.  (a)  A competent person who is

25-11    an adult may issue an out-of-hospital DNR order by nonwritten

25-12    communication.

25-13          (b)  A declarant must issue the nonwritten out-of-hospital

25-14    DNR order in the presence of the attending physician and two

25-15    witnesses.  [The witnesses must possess the same qualifications as

25-16    those provided by Section 672.003(c).]

25-17          (c)  The attending physician and witnesses shall sign the

25-18    out-of-hospital DNR order in the [that] place of the document

25-19    provided by Section 166.083(b)(7) [674.003(b)(7)] and the attending

25-20    physician shall sign the document in the place required by Section

25-21    166.083(b)(13) [674.003(b)(13)].  The physician shall make the fact

25-22    of the existence of the out-of-hospital DNR order a part of the

25-23    declarant's medical record and the witnesses shall sign that entry

25-24    in the medical record.

25-25          (d)  An out-of-hospital DNR order issued in the manner

25-26    provided by this section is valid and shall be honored by

25-27    responding health care professionals as if executed in the manner

 26-1    provided by Section 166.082 [674.002].

 26-2          Sec. 166.085 [674.005].  EXECUTION OF OUT-OF-HOSPITAL DNR

 26-3    ORDER ON BEHALF OF A MINOR. The following persons may execute an

 26-4    out-of-hospital DNR order on behalf of a minor:

 26-5                (1)  the minor's parents;

 26-6                (2)  the minor's legal guardian; or

 26-7                (3)  the minor's managing conservator.

 26-8          Sec. 166.086 [674.006].  DESIRE OF PERSON SUPERSEDES

 26-9    OUT-OF-HOSPITAL DNR ORDER.  The desire of a competent person,

26-10    including a competent minor, supersedes the effect of an

26-11    out-of-hospital DNR order executed or issued by or on behalf of the

26-12    person when the desire is communicated to responding health care

26-13    professionals as provided by this subchapter [chapter].

26-14          Sec. 166.087 [674.007].  PROCEDURE WHEN DECLARANT IS

26-15    INCOMPETENT OR INCAPABLE OF COMMUNICATION.  (a)  This section

26-16    applies when a person 18 years of age or older has executed or

26-17    issued an out-of-hospital DNR order and subsequently becomes

26-18    comatose, incompetent, or otherwise mentally or physically

26-19    incapable of communication.

26-20          (b)  If the adult person has designated a person to make a

26-21    treatment decision as authorized by Section 166.032(c)

26-22    [672.003(d)], the attending physician and the designated person

26-23    shall comply with the out-of-hospital DNR order.

26-24          (c)  If the adult person has not designated a person to make

26-25    a treatment decision as authorized by Section 166.032(c)

26-26    [672.003(d)], the attending physician shall comply with the

26-27    out-of-hospital DNR order unless the physician believes that the

 27-1    order does not reflect the person's present desire.

 27-2          Sec. 166.088 [674.008].  PROCEDURE WHEN PERSON HAS NOT

 27-3    EXECUTED OR ISSUED OUT-OF-HOSPITAL DNR ORDER AND IS INCOMPETENT OR

 27-4    INCAPABLE OF COMMUNICATION.  (a)  If an adult person has not

 27-5    executed or issued an out-of-hospital DNR order and is comatose,

 27-6    incompetent, or otherwise mentally or physically incapable of

 27-7    communication, the attending physician and the person's legal

 27-8    guardian, proxy, or agent having a durable power of attorney for

 27-9    health care may execute an out-of-hospital DNR order on behalf of

27-10    the person.

27-11          (b)  If the person does not have a legal guardian, proxy, or

27-12    agent, the attending physician and at least two qualified relatives

27-13    may execute an out-of-hospital DNR order in the same manner as a

27-14    treatment decision made under Section 166.039(b) [672.009(b)].

27-15          (c)  A decision to execute an out-of-hospital DNR order made

27-16    under Subsection (a) or (b) must be based on knowledge of what the

27-17    person would desire, if known.

27-18          (d)  An out-of-hospital DNR order executed under Subsection

27-19    (b) must be made in the presence of at least two witnesses [who

27-20    possess the same qualifications that are required by Section

27-21    672.003(c)].

27-22          (e)  The fact that an adult person has not executed or issued

27-23    an out-of-hospital DNR order does not create a presumption that the

27-24    person does not want a treatment decision made to withhold

27-25    cardiopulmonary resuscitation and certain other designated

27-26    life-sustaining procedures designated by the board.

27-27          Sec. 166.089 [674.009].  COMPLIANCE WITH OUT-OF-HOSPITAL DNR

 28-1    ORDER.  (a)  When responding to a call for assistance,  health care

 28-2    professionals shall honor an out-of-hospital DNR order in

 28-3    accordance with the statewide out-of-hospital DNR protocol and,

 28-4    where applicable, locally adopted out-of-hospital DNR protocols not

 28-5    in conflict with the statewide protocol if:

 28-6                (1)  the responding health care professionals discover

 28-7    an executed or issued out-of-hospital DNR order form on their

 28-8    arrival at the scene; and

 28-9                (2)  the responding health care professionals comply

28-10    with this section.

28-11          (b)  If the person is wearing a DNR identification device,

28-12    the responding health care professionals must comply with Section

28-13    166.090 [674.010].

28-14          (c)  The responding health care professionals must establish

28-15    the identity of the person as the person who executed or issued the

28-16    out-of-hospital DNR order or for whom the out-of-hospital DNR order

28-17    was executed or issued.

28-18          (d)  The responding health care professionals must determine

28-19    that the out-of-hospital DNR order form appears to be valid in that

28-20    it includes:

28-21                (1)  written responses in the places designated on the

28-22    form for the names, signatures, and other information required of

28-23    persons executing or issuing, or witnessing the execution or

28-24    issuance of, the order;

28-25                (2)  a date in the place designated on the form for the

28-26    date the order was executed or issued; and

28-27                (3)  the signature of the declarant or persons

 29-1    executing or issuing the order and the attending physician in the

 29-2    appropriate places designated on the form for indicating that the

 29-3    order form has been properly completed.

 29-4          (e)  If the conditions prescribed by Subsections (a) through

 29-5    (d) are not determined to apply by the responding health care

 29-6    professionals at the scene, the out-of-hospital DNR order may not

 29-7    be honored and life-sustaining procedures otherwise required by law

 29-8    or local emergency medical services protocols shall be initiated or

 29-9    continued.  Health care professionals acting in out-of-hospital

29-10    settings are not required to accept or interpret an out-of-hospital

29-11    DNR order that does not meet the requirements of this chapter.

29-12          (f)  The out-of-hospital DNR order form, when available, must

29-13    accompany the person during transport.

29-14          (g)  A record shall be made and maintained of the

29-15    circumstances of each emergency medical services response in which

29-16    an out-of-hospital DNR order or DNR identification device is

29-17    encountered, in accordance with the statewide out-of-hospital DNR

29-18    protocol and any applicable local out-of-hospital DNR protocol not

29-19    in conflict with the statewide protocol.

29-20          (h)  An out-of-hospital DNR order executed or issued and

29-21    documented or evidenced in the manner prescribed by this subchapter

29-22    [chapter] is valid and shall be honored by responding health care

29-23    professionals unless the person or persons found at the scene:

29-24                (1)  identify themselves as the declarant or as the

29-25    attending physician, legal guardian, qualified relative, or agent

29-26    of the person having a durable power of attorney for health care

29-27    who executed or issued the out-of-hospital DNR order on behalf of

 30-1    the person; and

 30-2                (2)  request that cardiopulmonary resuscitation or

 30-3    certain other life-sustaining procedures designated by the board be

 30-4    initiated or continued.

 30-5          (i)  If the policies of a health care facility preclude

 30-6    compliance with the out-of-hospital DNR order of a person or an

 30-7    out-of-hospital DNR order issued by an attending physician on

 30-8    behalf of a person who is admitted to or a resident of the

 30-9    facility, or if the facility is unwilling to accept DNR

30-10    identification devices as evidence of the existence of an

30-11    out-of-hospital DNR order, that facility shall take all reasonable

30-12    steps to notify the person or, if the person is incompetent, the

30-13    person's guardian or the person or persons having authority to make

30-14    health care treatment decisions on behalf of the person, of the

30-15    facility's policy and shall take all reasonable steps to effect the

30-16    transfer of the person to the person's home or to a facility where

30-17    the provisions of this subchapter [chapter] can be carried out.

30-18          Sec. 166.090 [674.010].  DNR IDENTIFICATION DEVICE.  (a)  A

30-19    person who has a valid out-of-hospital DNR order under  this

30-20    subchapter [chapter] may wear a DNR identification device around

30-21    the neck or on the wrist as prescribed by board rule adopted under

30-22    Section 166.103 [674.023].

30-23          (b)  The presence of a DNR identification device on the body

30-24    of a person is conclusive evidence that the person has executed or

30-25    issued a valid out-of-hospital DNR order or has a valid

30-26    out-of-hospital DNR order executed or issued on the person's

30-27    behalf.  Responding health care professionals shall honor the DNR

 31-1    identification device as if a valid out-of-hospital DNR order form

 31-2    executed or issued by the person were found in the possession of

 31-3    the person.

 31-4          Sec. 166.091 [674.011].  DURATION OF OUT-OF-HOSPITAL DNR

 31-5    ORDER.  An out-of-hospital DNR order is effective until it is

 31-6    revoked as prescribed by Section 166.092 [674.012].

 31-7          Sec. 166.092 [674.012].  REVOCATION OF OUT-OF-HOSPITAL DNR

 31-8    ORDER.  (a)  A declarant may revoke an out-of-hospital  DNR order

 31-9    at any time without regard to the declarant's mental state or

31-10    competency.  An order may be revoked by:

31-11                (1)  the declarant or someone in the declarant's

31-12    presence and at the declarant's direction destroying the order form

31-13    and removing the DNR identification device, if any;

31-14                (2)  a person who identifies himself or herself as the

31-15    legal guardian, as a qualified relative, or as the agent of the

31-16    declarant having a durable power of attorney for health care who

31-17    executed the out-of-hospital DNR order or another person in the

31-18    person's presence and at the person's direction destroying the

31-19    order form and removing the DNR identification device, if any;

31-20                (3)  the declarant communicating the declarant's intent

31-21    to revoke the order; or

31-22                (4)  a person who identifies himself or herself as the

31-23    legal guardian, a qualified relative, or the agent of the declarant

31-24    having a durable power of attorney for health care who executed the

31-25    out-of-hospital DNR order orally stating the person's intent to

31-26    revoke the order.

31-27          (b)  An oral revocation under Subsection (a)(3) or (a)(4)

 32-1    takes effect only when the declarant or a person who identifies

 32-2    himself or herself as the legal guardian, a qualified relative, or

 32-3    the agent of the declarant having a durable power of attorney for

 32-4    health care who executed the out-of-hospital DNR order communicates

 32-5    the intent to revoke the order to the responding health care

 32-6    professionals or the attending physician at the scene.  The

 32-7    responding health care professionals shall record the time, date,

 32-8    and place of the revocation in accordance with the statewide

 32-9    out-of-hospital DNR protocol and rules adopted by the board and any

32-10    applicable local out-of-hospital DNR protocol.  The attending

32-11    physician or the physician's designee shall record in the person's

32-12    medical record the time, date, and place of the revocation and, if

32-13    different, the time, date, and place that the physician received

32-14    notice of the revocation.  The attending physician or the

32-15    physician's designee shall also enter the word "VOID" on each page

32-16    of the copy of the order in the person's medical record.

32-17          (c)  Except as otherwise provided by this subchapter

32-18    [chapter], a person is not civilly or criminally liable for failure

32-19    to act on a revocation made under this section unless the person

32-20    has actual knowledge of the revocation.

32-21          Sec. 166.093 [674.013].  REEXECUTION OF OUT-OF-HOSPITAL DNR

32-22    ORDER.  A declarant may at any time reexecute or reissue an

32-23    out-of-hospital DNR order in accordance with the procedures

32-24    prescribed by Section 166.082 [674.002], including reexecution or

32-25    reissuance after the declarant is diagnosed as having a terminal

32-26    condition.

32-27          Sec. 166.094 [674.014].  CONFLICT WITH NATURAL DEATH ACT OR

 33-1    DURABLE POWER OF ATTORNEY FOR HEALTH CARE.  To the extent that an

 33-2    out-of-hospital DNR order conflicts with a directive or treatment

 33-3    decision executed or issued under Subchapter B [Chapter 672] or a

 33-4    durable power of attorney for health care [executed or issued in

 33-5    accordance with Chapter 135, Civil Practice and Remedies Code], the

 33-6    instrument executed later in time controls.

 33-7          Sec. 166.095 [674.015].  EFFECT OF OUT-OF-HOSPITAL DNR ORDER

 33-8    ON INSURANCE POLICY AND PREMIUMS.  (a)  The fact that a person has

 33-9    executed or issued an out-of-hospital DNR order under this

33-10    subchapter [chapter] does not:

33-11                (1)  restrict, inhibit, or impair in any manner the

33-12    sale, procurement, or issuance of a life insurance policy to that

33-13    person; or

33-14                (2)  modify the terms of an existing life insurance

33-15    policy.

33-16          (b)  Notwithstanding the terms of any life insurance policy,

33-17    the fact that cardiopulmonary resuscitation or certain other

33-18    life-sustaining procedures designated by the board are withheld

33-19    from an insured person under this subchapter [chapter] does not

33-20    legally impair or invalidate that person's life insurance policy

33-21    and may not be a factor for the purpose of determining the

33-22    payability of benefits or the cause of death under the life

33-23    insurance policy.

33-24          (c)  A physician, health facility, health care provider,

33-25    insurer, or health care service plan may not require a person to

33-26    execute or issue an out-of-hospital DNR order as a condition for

33-27    obtaining insurance for health care services or receiving health

 34-1    care services.

 34-2          (d)  The fact that a person has executed or issued or failed

 34-3    to execute or issue an out-of-hospital DNR order under this

 34-4    subchapter [chapter] may not be considered in any way in

 34-5    establishing insurance premiums.

 34-6          Sec. 166.096 [674.016].  LIMITATION ON LIABILITY FOR

 34-7    WITHHOLDING CARDIOPULMONARY RESUSCITATION AND CERTAIN OTHER

 34-8    LIFE-SUSTAINING PROCEDURES.  (a)  A health care professional or

 34-9    health care facility or entity that in good faith causes

34-10    cardiopulmonary resuscitation or certain other life-sustaining

34-11    procedures designated by the board to be withheld from a person in

34-12    accordance with this subchapter [chapter] is not civilly liable for

34-13    that action.

34-14          (b)  A health care professional or health care facility or

34-15    entity that in good faith participates in withholding

34-16    cardiopulmonary resuscitation or certain other life-sustaining

34-17    procedures designated by the board from a person in accordance with

34-18    this subchapter [chapter] is not  civilly liable for that action.

34-19          (c)  A health care professional or health care facility or

34-20    entity that in good faith participates in withholding

34-21    cardiopulmonary resuscitation or certain other life-sustaining

34-22    procedures designated by the board from a person in accordance with

34-23    this subchapter [chapter] is not criminally liable or guilty of

34-24    unprofessional conduct as a result of that action.

34-25          (d)  A health care professional or health care facility or

34-26    entity that in good faith causes or participates in withholding

34-27    cardiopulmonary resuscitation or certain other life-sustaining

 35-1    procedures designated by the board from a person in accordance with

 35-2    this subchapter [chapter] and rules adopted under this subchapter

 35-3    [chapter] is not in violation of any other licensing or regulatory

 35-4    laws or rules of this state and is not subject to any disciplinary

 35-5    action or sanction by any licensing or regulatory agency of this

 35-6    state as a result of that action.

 35-7          Sec. 166.097 [674.017].  LIMITATION ON LIABILITY FOR FAILURE

 35-8    TO EFFECTUATE OUT-OF-HOSPITAL DNR ORDER.  (a)  A health care

 35-9    professional or health care facility or entity that has no actual

35-10    knowledge of an out-of-hospital DNR order is not civilly or

35-11    criminally liable for failing to act in accordance with the order.

35-12          (b)  A health care professional or health care facility or

35-13    entity is not civilly or criminally liable for failing to

35-14    effectuate an out-of-hospital DNR order.

35-15          (c)  If an attending physician refuses to execute or comply

35-16    with an out-of-hospital DNR order, the physician shall inform the

35-17    person, the legal guardian or qualified relatives of the person, or

35-18    the agent of the person having a durable power of attorney for

35-19    health care and, if the person or another authorized to act on

35-20    behalf of the person so directs, shall make a reasonable effort to

35-21    transfer the person to another physician who is willing to execute

35-22    or comply with an out-of-hospital DNR order.

35-23          Sec. 166.098 [674.018].  HONORING OUT-OF-HOSPITAL DNR ORDER

35-24    DOES NOT CONSTITUTE OFFENSE OF AIDING SUICIDE.  A person does not

35-25    commit an offense under Section 22.08, Penal Code, by withholding

35-26    cardiopulmonary resuscitation or certain other life-sustaining

35-27    procedures designated by the board from a person in accordance with

 36-1    this subchapter [chapter].

 36-2          Sec. 166.099 [674.019].  CRIMINAL PENALTY; PROSECUTION.  (a)

 36-3    A person commits an offense if the person  intentionally conceals,

 36-4    cancels, defaces, obliterates, or damages another person's

 36-5    out-of-hospital DNR order or DNR identification device without that

 36-6    person's consent or the consent of the person or persons authorized

 36-7    to execute or issue an out-of-hospital DNR order on behalf of the

 36-8    person under this subchapter [chapter].  An offense under this

 36-9    subsection is a Class A misdemeanor.

36-10          (b)  A person is subject to prosecution for criminal homicide

36-11    under Chapter 19, Penal Code, if the person, with the intent to

36-12    cause cardiopulmonary resuscitation or certain other

36-13    life-sustaining procedures designated by the board to be withheld

36-14    from another person contrary to the other person's desires,

36-15    falsifies or forges an out-of-hospital DNR order or intentionally

36-16    conceals or withholds personal knowledge of a revocation and

36-17    thereby directly causes cardiopulmonary resuscitation and certain

36-18    other life-sustaining procedures designated by the board to be

36-19    withheld from the other person with the result that the other

36-20    person's death is hastened.

36-21          Sec. 166.100 [674.020].  PREGNANT PERSONS.  A person may not

36-22    withhold cardiopulmonary resuscitation or certain other

36-23    life-sustaining procedures designated by the board under this

36-24    subchapter [chapter] from a person known by the responding health

36-25    care professionals to be pregnant.

36-26          Sec. 166.101 [674.021].  MERCY KILLING NOT CONDONED.  This

36-27    subchapter [chapter] does not condone, authorize, or approve  mercy

 37-1    killing or permit an affirmative or deliberate act or omission to

 37-2    end life except to permit the natural process of dying as provided

 37-3    by this subchapter [chapter].

 37-4          Sec. 166.102 [674.022].  LEGAL RIGHT OR RESPONSIBILITY NOT

 37-5    AFFECTED.  This subchapter [chapter] does not impair or  supersede

 37-6    any legal right or responsibility a person may have under a

 37-7    constitution, other statute, regulation, or court decision to

 37-8    effect the withholding of cardiopulmonary resuscitation or certain

 37-9    other life-sustaining procedures designated by the board.

37-10          Sec. 166.103 [674.023].  DUTIES OF DEPARTMENT AND BOARD.  (a)

37-11    The board shall, on the recommendation of the  department, adopt

37-12    all reasonable and necessary rules to carry out the purposes of

37-13    this subchapter [chapter], including rules:

37-14                (1)  adopting a statewide out-of-hospital DNR order

37-15    protocol that sets out standard procedures for the withholding of

37-16    cardiopulmonary resuscitation and certain other life-sustaining

37-17    procedures by health care professionals acting in out-of-hospital

37-18    settings;

37-19                (2)  designating life-sustaining procedures that may be

37-20    included in an out-of-hospital DNR order, including all procedures

37-21    listed in Section 166.081(7)(A)(i) through (vi) [674.001(14)(A)(i)

37-22    through (vi)]; and

37-23                (3)  governing recordkeeping in circumstances in which

37-24    an out-of-hospital DNR order or DNR identification device is

37-25    encountered by responding health care professionals.

37-26          (b)  The rules adopted by the board under Subsection (a) are

37-27    not effective until approved by the Texas State Board of Medical

 38-1    Examiners.

 38-2          (c)  Local emergency medical services authorities may adopt

 38-3    local out-of-hospital DNR order protocols if the local protocols do

 38-4    not conflict with the statewide out-of-hospital DNR order protocol

 38-5    adopted by the board.

 38-6          (d)  The board by rule shall specify a distinctive standard

 38-7    design for a necklace and a bracelet DNR identification device that

 38-8    signifies, when worn by a person, that the possessor has executed

 38-9    or issued a valid out-of-hospital DNR order under this subchapter

38-10    [chapter] or is a person for whom a valid out-of-hospital DNR order

38-11    has been executed or issued.

38-12          (e)  The department shall report to the board from time to

38-13    time regarding issues identified in emergency medical services

38-14    responses in which an out-of-hospital DNR order or DNR

38-15    identification device is encountered.  The report may contain

38-16    recommendations to the board for necessary modifications to the

38-17    form of the standard out-of-hospital DNR order or the designated

38-18    life-sustaining procedures listed in the standard out-of-hospital

38-19    DNR order, the statewide out-of-hospital DNR order protocol, or the

38-20    DNR identification devices.

38-21          Sec. 166.104 [674.024].  RECOGNITION OF OUT-OF-HOSPITAL DNR

38-22    ORDER EXECUTED OR ISSUED IN OTHER STATE.  An out-of-hospital DNR

38-23    order executed, issued, or authorized in another state or a

38-24    territory or possession of the United States in compliance with the

38-25    law of that jurisdiction is effective for purposes of this

38-26    subchapter [chapter].

38-27          SECTION 1.05.  Chapter 135, Civil Practice and Remedies Code,

 39-1    is transferred to Subtitle H, Title 2, Health and Safety Code, is

 39-2    redesignated as Subchapter D, Chapter 166, Health and Safety Code,

 39-3    and is amended to read as follows:

 39-4         SUBCHAPTER D [CHAPTER 135]. DURABLE POWER OF ATTORNEY FOR

 39-5                                HEALTH CARE

 39-6          Sec. 166.151 [135.001].  DEFINITIONS.  In this subchapter

 39-7    [chapter]:

 39-8                (1)  "Adult" means a person 18 years of age or older or

 39-9    a person under 18 years of age who has had the disabilities of

39-10    minority removed.

39-11                (2)  "Agent" means an adult to whom authority to make

39-12    health care decisions is delegated under a durable power of

39-13    attorney for health care.

39-14                (3)  ["Attending physician" means the physician,

39-15    selected by or assigned to a patient, who has primary

39-16    responsibility for the treatment and care of the patient.]

39-17                [(4)  "Capacity to make health care decisions" means

39-18    the ability to understand and appreciate the nature and

39-19    consequences of a health care decision, including the significant

39-20    benefits and harms of and reasonable alternatives to any proposed

39-21    health care.]

39-22                [(5)  "Durable power of attorney for health care" means

39-23    a document delegating to an agent the authority to make health care

39-24    decisions as provided by this chapter.]

39-25                [(6)  "Health care decision" means consent, refusal to

39-26    consent, or withdrawal of consent to health care, treatment,

39-27    service, or procedure to maintain, diagnose, or treat an

 40-1    individual's physical or mental condition.]

 40-2                [(7)]  "Health care provider" means an individual or

 40-3    facility licensed, certified, or otherwise authorized to administer

 40-4    health care, for profit or otherwise, in the ordinary course of

 40-5    business or professional practice and includes a physician.

 40-6                (4) [(8)  "Physician" means:]

 40-7                      [(A)  a physician licensed by the Texas State

 40-8    Board of Medical Examiners; or]

 40-9                      [(B)  a physician with proper credentials who

40-10    holds a commission in a branch of the armed services of the United

40-11    States and who is serving on active duty in this state.]

40-12                [(9)]  "Principal" means an adult who has executed a

40-13    durable power of attorney for health care.

40-14                (5) [(10)]  "Residential care provider" means an

40-15    individual or facility licensed, certified, or otherwise authorized

40-16    to operate, for profit or otherwise, a residential care home.

40-17          Sec. 166.152 [135.002].  SCOPE AND DURATION OF AUTHORITY.

40-18    (a)  Subject to this subchapter [chapter] or any  express

40-19    limitation on the authority of the agent contained in the durable

40-20    power of attorney for health care, the agent may make any health

40-21    care decision on the principal's behalf that the principal could

40-22    make if the principal were competent [but for the principal's lack

40-23    of capacity to make health care decisions].

40-24          (b)  An agent may exercise authority only if the principal's

40-25    attending physician certifies in writing and files the

40-26    certification in the principal's medical record that, based on the

40-27    attending physician's reasonable medical judgment, the principal is

 41-1    incompetent [lacks capacity to make health care decisions].

 41-2          (c)  Notwithstanding any other provisions of this subchapter

 41-3    [chapter], treatment may not be given to or withheld from the

 41-4    principal if the principal objects regardless of whether, at the

 41-5    time of the objection:

 41-6                (1)  a durable power of attorney for health care is in

 41-7    effect; or

 41-8                (2)  the principal is competent [has the capacity to

 41-9    make health care decisions].

41-10          (d)  The principal's attending physician shall make

41-11    reasonable efforts to inform the principal of any proposed

41-12    treatment or of any proposal to withdraw or withhold treatment

41-13    before implementing an agent's directive.

41-14          (e)  After consultation with the attending physician and

41-15    other health care providers, the agent shall make a health care

41-16    decision:

41-17                (1)  according to the agent's knowledge of the

41-18    principal's wishes, including the principal's religious and moral

41-19    beliefs; or

41-20                (2)  if the agent does not know the principal's wishes,

41-21    according to the agent's assessment of the principal's best

41-22    interests.

41-23          (f)  Notwithstanding any other provision of this subchapter

41-24    [chapter], an agent may not consent to:

41-25                (1)  voluntary inpatient mental health services;

41-26                (2)  convulsive treatment;

41-27                (3)  psychosurgery;

 42-1                (4)  abortion; or

 42-2                (5)  neglect of the principal through the omission of

 42-3    care primarily intended to provide for the comfort of the

 42-4    principal.

 42-5          (g)  The power of attorney is effective indefinitely on

 42-6    execution as provided by this subchapter [chapter] and delivery of

 42-7    the document to the agent, unless it is revoked as provided by this

 42-8    subchapter [chapter] or the principal becomes competent [regains

 42-9    the capacity to make health care decisions].  If the durable power

42-10    of attorney includes an expiration date and on that date the

42-11    principal becomes incompetent [lacks the capacity to make health

42-12    care decisions], the power of attorney continues to be effective

42-13    until the principal becomes competent [regains the capacity to make

42-14    health care decisions] unless it is revoked as provided by this

42-15    subchapter [chapter].

42-16          Sec. 166.153 [135.003].  PERSONS WHO MAY NOT EXERCISE

42-17    AUTHORITY OF AGENT.  A person may not exercise the authority of an

42-18    agent while the person serves as:

42-19                (1)  the principal's health care provider;

42-20                (2)  an employee of the principal's health care

42-21    provider unless the person is a relative of the principal;

42-22                (3)  the principal's residential care provider; or

42-23                (4)  an employee of the principal's residential care

42-24    provider unless the person is a relative of the principal.

42-25          Sec. 166.154 [135.004].  EXECUTION AND WITNESSES.  (a)  The

42-26    durable power of attorney for health care must be signed by the

42-27    principal in the presence of at least two [or more] subscribing

 43-1    witnesses.

 43-2          (b)  A witness must possess the qualifications and be subject

 43-3    to the restrictions provided by Section 166.003.  In addition, a

 43-4    witness may not, at the  time of execution, be[:]

 43-5                [(1)]  the agent[;]

 43-6                [(2)  the principal's health or residential care

 43-7    provider or the provider's employee;]

 43-8                [(3)  the principal's spouse or heir;]

 43-9                [(4)  a person entitled to any part of the estate of

43-10    the principal on the death of the principal under a will or deed in

43-11    existence or by operation of law; or]

43-12                [(5)  any other person who has any claim against the

43-13    estate] of the principal.

43-14          (c)  The witnesses shall affirm that, at the time the durable

43-15    power of attorney for health care was signed, the principal:

43-16                (1)  appeared to be competent [of sound mind to make a

43-17    health care decision];

43-18                (2)  stated in the witness's presence that the

43-19    principal was aware of the nature of the durable power of attorney

43-20    for health care and that the principal was signing the document

43-21    voluntarily and free from any duress; and

43-22                (3)  requested that the witness serve as a witness to

43-23    the principal's execution of the document.

43-24          (d)  If the principal is physically unable to sign, another

43-25    person may sign the durable power of attorney for health care with

43-26    the principal's name in the principal's presence and at the

43-27    principal's express direction.

 44-1          Sec. 166.155 [135.005].  REVOCATION.  (a)  A durable power of

 44-2    attorney for health care is revoked by:

 44-3                (1)  oral or written notification at any time by the

 44-4    principal to the agent or a licensed or certified health or

 44-5    residential care provider or by any other act evidencing a specific

 44-6    intent to revoke the power, without regard to whether the principal

 44-7    is competent or the principal's mental state[, competency, or

 44-8    capacity to make health care decisions];

 44-9                (2)  execution by the principal of a subsequent durable

44-10    power of attorney for health care; or

44-11                (3)  the divorce of the principal and spouse, if the

44-12    spouse is the principal's agent.

44-13          (b)  A principal's licensed or certified health or

44-14    residential care provider who is informed of or provided with a

44-15    revocation of a durable power of attorney for health care shall

44-16    immediately record the revocation in the principal's medical record

44-17    and give notice of the revocation to the agent and any known health

44-18    and residential care providers currently responsible for the

44-19    principal's care.

44-20          Sec. 166.156 [135.006].  APPOINTMENT OF GUARDIAN.  (a)  On

44-21    motion filed in connection with a petition for  appointment of a

44-22    guardian or, if a guardian has been appointed, on petition of the

44-23    guardian, a probate court shall determine whether to suspend or

44-24    revoke the authority of the agent.

44-25          (b)  The court shall consider the preferences of the

44-26    principal as expressed in the durable power of attorney for health

44-27    care.

 45-1          (c)  During the pendency of the court's determination under

 45-2    Subsection (a), the guardian has the sole authority to make any

 45-3    health care decisions unless the court orders otherwise.  If a

 45-4    guardian has not been appointed, the agent has the authority to

 45-5    make any health care decisions unless the court orders otherwise.

 45-6          (d)  A person, including any attending physician or health or

 45-7    residential care provider, who does not have actual knowledge of

 45-8    the appointment of a guardian or an order of the court granting

 45-9    authority to someone other than the agent to make health care

45-10    decisions is not subject to criminal or civil liability and has not

45-11    engaged in unprofessional conduct for implementing an agent's

45-12    health care decision.

45-13          Sec. 166.157 [135.007].  DISCLOSURE OF MEDICAL INFORMATION.

45-14    Subject to any limitations in the durable power of attorney for

45-15    health care, an agent may, for the purpose of making a health care

45-16    decision:

45-17                (1)  request, review, and receive any information, oral

45-18    or written, regarding the principal's physical or mental health,

45-19    including medical and hospital records;

45-20                (2)  execute a release or other document required to

45-21    obtain the information; and

45-22                (3)  consent to the disclosure of the information.

45-23          Sec. 166.158 [135.008].  DUTY OF HEALTH OR RESIDENTIAL CARE

45-24    PROVIDER.  (a)  A principal's health or residential care provider

45-25    and an employee of the provider who knows of the existence of the

45-26    principal's durable power of attorney for health care shall follow

45-27    a directive of the principal's agent to the extent it is consistent

 46-1    with the desires of the principal, this subchapter [chapter], and

 46-2    the durable power of attorney for health care.

 46-3          (b)  The attending physician does not have a duty to verify

 46-4    that the agent's directive is consistent with the principal's

 46-5    wishes or religious or moral beliefs.

 46-6          (c)  A principal's health or residential care provider who

 46-7    finds it impossible to follow a directive by the agent because of a

 46-8    conflict with this subchapter [chapter] or the durable power of

 46-9    attorney for health care shall inform the agent as soon as is

46-10    reasonably possible.  The agent may select another attending

46-11    physician.

46-12          (d)  This subchapter [chapter] may not be construed to

46-13    require a health or residential care provider who is not a

46-14    physician to act in a manner contrary to a physician's order.

46-15          Sec. 166.159 [135.009].  DISCRIMINATION RELATING TO EXECUTION

46-16    OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE.  A health or

46-17    residential care provider, health care service plan, insurer

46-18    issuing disability insurance, self-insured employee benefit plan,

46-19    or nonprofit hospital service plan may not:

46-20                (1)  charge a person a different rate solely because

46-21    the person has executed a durable power of attorney for health

46-22    care;

46-23                (2)  require a person to execute a durable power of

46-24    attorney for health care before:

46-25                      (A)  admitting the person to a hospital, nursing

46-26    home, or residential care home;

46-27                      (B)  insuring the person; or

 47-1                      (C)  allowing the person to receive health or

 47-2    residential care; or

 47-3                (3)  refuse health or residential care to a person

 47-4    solely because the person has executed a durable power of attorney

 47-5    for health care.

 47-6          Sec. 166.160 [135.010].  LIMITATION ON LIABILITY.  (a)  An

 47-7    agent is not subject to criminal or civil liability for a health

 47-8    care decision if the decision is made in good faith under the terms

 47-9    of the durable power of attorney for health care and the provisions

47-10    of this subchapter [chapter].

47-11          (b)  An attending physician, health or residential care

47-12    provider, or a person acting as an agent for or under the

47-13    physician's or provider's control is not subject to criminal or

47-14    civil liability and has not engaged in unprofessional conduct for

47-15    an act or omission if the act or omission:

47-16                (1)  is done in good faith under the terms of the

47-17    durable power of attorney for health care, the directives of the

47-18    agent, and the provisions of this subchapter [chapter]; and

47-19                (2)  does not constitute a failure to exercise due care

47-20    in the provision of health care services.

47-21          (c)  An attending physician, health or residential care

47-22    provider, or person acting as an agent for or under the physician's

47-23    or provider's control has not engaged in unprofessional conduct

47-24    for:

47-25                (1)  failure to act as required by the directive of an

47-26    agent or a durable power of attorney for health care if the

47-27    physician, provider, or person was not provided with a copy of the

 48-1    durable power of attorney for health care or had no knowledge of a

 48-2    directive; or

 48-3                (2)  acting as required by an agent's directive if the

 48-4    durable power of attorney for health care has expired or been

 48-5    revoked but the physician, provider, or person does not have

 48-6    knowledge of the expiration or revocation.

 48-7          Sec. 166.161 [135.011].  LIABILITY FOR HEALTH CARE COSTS.

 48-8    Liability for the cost of health care provided as a result of the

 48-9    agent's decision is the same as if the health care were provided as

48-10    a result of the principal's decision.

48-11          Sec. 166.162 [135.012].  NATURAL DEATH ACT.  To the extent

48-12    that a durable power of attorney for health care conflicts with a

48-13    directive or treatment decision executed under Subchapter B [the

48-14    Natural Death Act (Chapter 672, Health and Safety Code)], the

48-15    instrument executed later in time controls.  A physician who

48-16    withholds or withdraws life-sustaining procedures from a principal

48-17    with a terminal condition as required by an agent's directive is

48-18    not required to comply with Subchapter B [the Natural Death Act].

48-19          Sec. 166.163 [135.013].  ENFORCEABILITY OF DURABLE POWER OF

48-20    ATTORNEY EXECUTED IN ANOTHER JURISDICTION.  This subchapter

48-21    [chapter] does not limit the enforceability of a durable power of

48-22    attorney for health care or similar instrument executed in another

48-23    state or jurisdiction if the instrument complies with the law of

48-24    the state or jurisdiction.

48-25          Sec. 166.164 [135.014].  DISCLOSURE STATEMENT.  A durable

48-26    power of attorney for health care is not effective unless the

48-27    principal, before executing the durable power of attorney for

 49-1    health care, signs a statement that the principal has received a

 49-2    disclosure statement and has read and understood its contents.

 49-3          Sec. 166.165 [135.015].  FORM OF DISCLOSURE STATEMENT.  The

 49-4    disclosure statement must be in substantially the following form:

 49-5         INFORMATION CONCERNING THE DURABLE POWER OF ATTORNEY FOR

 49-6                                HEALTH CARE

 49-7          THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS

 49-8          DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

 49-9                Except to the extent you state otherwise, this document

49-10          gives the person you name as your agent the authority to make

49-11          any and all health care decisions for you in accordance with

49-12          your wishes, including your religious and moral beliefs, when

49-13          you are no longer capable of making them yourself.  Because

49-14          "health care" means any treatment, service, or procedure to

49-15          maintain, diagnose, or treat your physical or mental

49-16          condition, your agent has the power to make a broad range of

49-17          health care decisions for you.  Your agent may consent,

49-18          refuse to consent, or withdraw consent to medical treatment

49-19          and may make decisions about withdrawing or withholding

49-20          life-sustaining treatment.  Your agent may not consent to

49-21          voluntary inpatient mental health services, convulsive

49-22          treatment, psychosurgery, or abortion.  A physician must

49-23          comply with your agent's instructions or allow you to be

49-24          transferred to another physician.

49-25                Your agent's authority begins when your doctor

49-26          certifies that you lack the capacity to make health care

49-27          decisions.

 50-1                Your agent is obligated to follow your instructions

 50-2          when making decisions on your behalf.  Unless you state

 50-3          otherwise, your agent has the same authority to make

 50-4          decisions about your health care as you would have had.

 50-5                It is important that you discuss this document with

 50-6          your physician or other health care provider before you sign

 50-7          it to make sure that you understand the nature and range of

 50-8          decisions that may be made on your behalf.  If you do not

 50-9          have a physician, you should talk with someone else who is

50-10          knowledgeable about these issues and can answer your

50-11          questions.  You do not need a lawyer's assistance to complete

50-12          this document, but if there is anything in this document that

50-13          you do not understand, you should ask a lawyer to explain it

50-14          to you.

50-15                The person you appoint as agent should be someone you

50-16          know and trust.  The person must be 18 years of age or older

50-17          or a person under 18 years of age who has had the

50-18          disabilities of minority removed.  If you appoint your health

50-19          or residential care provider (e.g., your physician or an

50-20          employee of a home health agency, hospital, nursing home, or

50-21          residential care home, other than a relative), that person

50-22          has to choose between acting as your agent or as your health

50-23          or residential care provider; the law does not permit a

50-24          person to do both at the same time.

50-25                You should inform the person you appoint that you want

50-26          the person to be your health care agent.  You should discuss

50-27          this document with your agent and your physician and give

 51-1          each a signed copy.  You should indicate on the document

 51-2          itself the people and institutions who have signed copies.

 51-3          Your agent is not liable for health care decisions made in

 51-4          good faith on your behalf.

 51-5                Even after you have signed this document, you have the

 51-6          right to make health care decisions for yourself as long as

 51-7          you are able to do so and treatment cannot be given to you or

 51-8          stopped over your objection.  You have the right to revoke

 51-9          the authority granted to your agent by informing your agent

51-10          or your health or residential care provider orally or in

51-11          writing or by your execution of a subsequent durable power of

51-12          attorney for health care.  Unless you state otherwise, your

51-13          appointment of a spouse dissolves on divorce.

51-14                This document may not be changed or modified.  If you

51-15          want to make changes in the document, you must make an

51-16          entirely new one.

51-17                You may wish to designate an alternate agent in the

51-18          event that your agent is unwilling, unable, or ineligible to

51-19          act as your agent.  Any alternate agent you designate has the

51-20          same authority to make health care decisions for you.

51-21          THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS SIGNED IN

51-22          THE PRESENCE OF TWO [OR MORE] QUALIFIED WITNESSES. THE

51-23          FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

51-24                      (1)  the person you have designated as your

51-25          agent;

51-26                      (2)  a person related to you by blood or marriage

51-27          [your health or residential care provider or an employee of

 52-1          your health or residential care provider];

 52-2                      (3)  a person entitled to any part of your estate

 52-3          after your death under a will or codicil executed by you or

 52-4          by operation of law [your spouse];

 52-5                      (4)  your attending physician; [your lawful heirs

 52-6          or beneficiaries named in your will or a deed; or]

 52-7                      (5)  an employee of the attending physician;

 52-8                      (6)  an employee of a health care facility in

 52-9          which you are a patient if the employee is providing direct

52-10          patient care to you or is an officer, director, partner, or

52-11          business office employee of the health care facility or of

52-12          any parent  organization of the health care facility;

52-13                      (7)  a patient in a health care facility in which

52-14          you are a patient; or

52-15                      (8)  a person who, at the time this power of

52-16          attorney is executed, has a claim against any part of your

52-17          estate after your death [creditors or persons who have a

52-18          claim against you].

52-19          Sec. 166.166 [135.016].  FORM OF DURABLE POWER OF ATTORNEY.

52-20    The durable power of attorney for health care must be in

52-21    substantially the following form:

52-22                 DURABLE POWER OF ATTORNEY FOR HEALTH CARE

52-23    DESIGNATION OF HEALTH CARE AGENT.

52-24          I,_____________________(insert your name) appoint:

52-25          Name:____________________

52-26          Address:_________________

52-27          Phone____________________

 53-1    as my agent to make any and all health care decisions for me,

 53-2    except to the extent I state otherwise in this document.  This

 53-3    durable power of attorney for health care takes effect if I become

 53-4    unable to make my own health care decisions and this fact is

 53-5    certified in writing by my physician.

 53-6    LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE AS

 53-7    FOLLOWS:___________________________

 53-8    _______________________________________________________ DESIGNATION

 53-9    OF ALTERNATE AGENT.

53-10          (You are not required to designate an alternate agent but you

53-11    may do so.  An alternate agent may make the same health care

53-12    decisions as the designated agent if the designated agent is unable

53-13    or unwilling to act as your agent.  If the agent designated is your

53-14    spouse, the designation is automatically revoked by law if your

53-15    marriage is dissolved.)

53-16          If the person designated as my agent is unable or unwilling

53-17    to make health care decisions for me, I designate the following

53-18    persons to serve as my agent to make health care decisions for me

53-19    as authorized by this document, who serve in the following order:

53-20          A.  First Alternate Agent

53-21                Name:________________________

53-22                Address:_____________________

53-23                Phone________________________

53-24          B.  Second Alternate Agent

53-25                Name:________________________

53-26                Address:_____________________

53-27                Phone________________________

 54-1                The original of this document is kept

 54-2    at________________________________________________

 54-3    __________________________________________________

 54-4    __________________________________________________

 54-5    The following individuals or institutions have signed copies:

 54-6          Name:____________________________________________

 54-7          Address:_________________________________________

 54-8          _________________________________________________

 54-9          Name:____________________________________________

54-10          Address:_________________________________________

54-11          _________________________________________________

54-12    DURATION.

54-13          I understand that this power of attorney exists indefinitely

54-14    from the date I execute this document unless I establish a shorter

54-15    time or revoke the power of attorney.  If I am unable to make

54-16    health care decisions for myself when this power of attorney

54-17    expires, the authority I have granted my agent continues to exist

54-18    until the time I become able to make health care decisions for

54-19    myself.

54-20          (IF APPLICABLE) This power of attorney ends on the following

54-21    date:________________

54-22    PRIOR DESIGNATIONS REVOKED.

54-23          I revoke any prior durable power of attorney for health care.

54-24    ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.

54-25          I have been provided with a disclosure statement explaining

54-26    the effect of this document.  I have read and understand that

54-27    information contained in the disclosure statement.

 55-1          (YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY.)  I sign my

 55-2    name to this durable power of attorney for health care on _____ day

 55-3    of ________ 19 __ at____________(City and State)

 55-4    ___________(Signature)

 55-5    ________________(Print Name)

 55-6    STATEMENT OF WITNESSES.

 55-7          I declare under penalty of perjury that the principal has

 55-8    identified himself or herself to me, that the principal signed or

 55-9    acknowledged this durable power of attorney in my presence, that I

55-10    believe the principal to be of sound mind, that the principal has

55-11    affirmed that the principal is aware of the nature of the document

55-12    and is signing it voluntarily and free from duress, that the

55-13    principal requested that I serve as witness to the principal's

55-14    execution of this document, that I am not the person appointed as

55-15    agent by this document, and that I am not related to the principal

55-16    by blood or marriage, I would not be entitled to any portion of the

55-17    principal's estate on the principal's death, I am not the attending

55-18    physician of the principal or an employee of the attending

55-19    physician, I am not a patient in the health care facility in which

55-20    the principal is a patient, and I have no claim against any portion

55-21    of the principal's estate on the principal's death. Furthermore, if

55-22    I am an employee of a health care facility in which the principal

55-23    is a patient, I am not involved in providing direct patient care to

55-24    the principal and am not an officer, director, partner, or

55-25    business office employee of the health care facility or  of  any

55-26    parent  organization of the health care facility [a provider of

55-27    health or residential care, an employee of a provider of health or

 56-1    residential care, the operator of a community care facility, or an

 56-2    employee of an operator of a health care facility.]

 56-3          [I declare that I am not related to the principal by blood,

 56-4    marriage, or adoption and that to the best of my knowledge I am not

 56-5    entitled to any part of the estate of the principal on the death of

 56-6    the principal under a will or by operation of law].

 56-7    Witness Signature:_______________

 56-8    Print Name:_____________________Date:____________

 56-9    Address:_______________________________________________

56-10    Witness Signature:_______________

56-11    Print Name:_____________________Date:____________

56-12    Address:_______________________________________________

56-13          Sec. 166.167 [135.017].  CIVIL ACTION.  (a)  A person who is

56-14    a near relative of the principal or a responsible adult who is

56-15    directly interested in the principal, including a guardian, social

56-16    worker, physician, or clergyman, may bring an action in district

56-17    court to request that the durable power of attorney for health care

56-18    be revoked because the principal, at the time the durable power of

56-19    attorney for health care was signed:

56-20                (1)  was not competent [of sound mind to make a health

56-21    care decision]; or

56-22                (2)  was under duress, fraud, or undue influence.

56-23          (b)  The action may be brought in the county of the

56-24    principal's residence or the residence of the person bringing the

56-25    action.

56-26          (c)  During the pendency of the action, the authority of the

56-27    agent to make health care decisions continues in effect unless the

 57-1    district court orders otherwise.

 57-2          Sec. 166.168 [135.018].  OTHER RIGHTS OR RESPONSIBILITIES NOT

 57-3    AFFECTED.  This subchapter [chapter] does not limit or impair any

 57-4    legal right or responsibility that any person, including a

 57-5    physician or health or residential care provider, may have to make

 57-6    or implement health care decisions on behalf of a person.

 57-7                     ARTICLE 2.  CONFORMING AMENDMENTS

 57-8          SECTION 2.01.   Section 313.003(a), Health and Safety Code,

 57-9    is amended to read as follows:

57-10          (a)  This chapter does not apply to:

57-11                (1)  a decision to withhold or withdraw life-sustaining

57-12    treatment from qualified terminal patients under Subchapter B,

57-13    Chapter 166 [the terms of Chapter 672];

57-14                (2)  a health care decision made under a durable power

57-15    of attorney for health care under Subchapter D, Chapter 166

57-16    [Chapter 135, Civil Practice and Remedies Code], or under Chapter

57-17    XII, Texas Probate Code;

57-18                (3)  consent to medical treatment of minors under

57-19    Chapter 32 [35], Family Code;

57-20                (4)  consent for emergency care under Chapter 773;

57-21                (5)  hospital patient transfers under Chapter 241;  or

57-22                (6)  a patient's legal guardian who has the authority

57-23    to make a decision regarding the patient's medical treatment.

57-24                ARTICLE 3.  TRANSITION AND EMERGENCY CLAUSE

57-25          SECTION 3.01.   This Act takes effect January 1, 1998.

57-26          SECTION 3.02.   The change in law made by this Act does not

57-27    affect the validity of a document executed under Chapter 672 or

 58-1    674, Health and Safety Code, or Chapter 135, Civil Practice and

 58-2    Remedies Code, before the effective date of this Act.  A document

 58-3    executed before the effective date of this Act is governed by the

 58-4    law in effect on the date the document was executed and that law

 58-5    continues in effect for that purpose.

 58-6          SECTION 3.03.  (a)  The change in law made by this Act

 58-7    applies only to the punishment for an offense committed on or after

 58-8    the effective date of this Act.  For purposes of this section, an

 58-9    offense is committed before the effective date of this Act if any

58-10    element of the offense occurs before the effective date.

58-11          (b)  An offense committed before the effective date of this

58-12    Act is covered by the law in effect when the offense was committed,

58-13    and the former law is continued in effect for that purpose.

58-14          SECTION 3.04.  The importance of this legislation and the

58-15    crowded condition of the calendars in both houses create an

58-16    emergency and an imperative public necessity that the

58-17    constitutional rule requiring bills to be read on three several

58-18    days in each house be suspended, and this rule is hereby suspended.